Chellappan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 22[ND] DAY OF DECEMBER 2021 / 1ST POUSHA, 1943 CRL.REV.PET NO. 2216 OF 2010** **AGAINST THE JUDGMENT DATED 14.5.2010 IN CRA 129/2008 OF III ADDITIONAL SESSIONS COURT,ERNAKULAM CC 497/2003 OF JFCM.-I,ERNAKULAM** ## **REVISION PETITIONER/APPELLANT NO.2 IN CRLA/ACCUSED IN CC:** CHELLAPPAN, AGED 65 YEARS, S/O. ACHUTHAN, PALLATHUKUZHY VEETTIL,, THOTTARA DESOM, KULAITTIKAARA VILLAGE. BY SMT MAJIDA S, AMICUS CURIAE ADV SRI.A.P.SUBHASH ## **RESPONDENT/RESPONDENT IN CRLA/COMPLAINANT IN CC:** STATE OF KERALA PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SMT MAYA M N ,PP THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.R.P.No.2216/2010 ## -:2:- ## O R D E R Dated this the 22nd day of December, 2021 This criminal revision petition has been directed against the judgment dated 14.5.2010 passed by the III Additional Sessions Court, Ernakulam (for short 'the appellate court') in Crl.A.No.129/2008 confirming the judgment dated 23.01.2008 passed by the Judaical First Class Magistrate Court-I, Ernakulam (for short 'the trial court') in C.C.No.497/2003. 2. The revision petitioner is the third accused. He along with accused Nos. 1 and 2 faced trial for the offence punishable under Section 20(b)(ii)A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act'). 3. The prosecution case in short is that on 2.8.2002 at 8.15 am, the accused Nos. 1 and 2 were found transporting 125 grams of 'ganja' in an autorickshaw bearing registration No. KL-7 Z 8508 driven by the second accused and as per the information received from accused Nos. 1 and 2, the excise party reached the house of the accused No.3 who is the father of the accused No.1 Crl.R.P.No.2216/2010 -:3:- and it was found that the accused No.3 was in possession of 425 grams of 'ganja' in his house at Thottara in Kulaittikara Village in contravention of the NDPS Acts and Rules and thereby committed the offence. 4. On receipt of summons all the three accused appeared at the trial court. After hearing both sides, the trial court framed charge against the accused under Section 20(b)(ii)A of the NDPS Act. The charge was read over and explained to the accused who pleaded not guilty. 5. The prosecution examined PW1 to PW10 and marked Exts.P1 to P14. MO1 to MO7 were identified. The accused were questioned under Section 313 of Cr.P.C. They denied the incriminating circumstances brought against them during evidence. It was submitted that they are innocent. On the side of defence DW1 was examined. 6. Considering the evidence on record, the trial court found the accused 1 and 3 guilty under Section 20(b)(ii)A of the NDPS Act and they were convicted for the said offence. They were sentenced to undergo simple imprisonment for three Crl.R.P.No.2216/2010 -:4:- months each and to pay a fine of Rs.5000/- each, in default to undergo simple imprisonment for one month each. The accused No.2 was found not guilty and he was acquitted. Aggrieved by the conviction and sentence passed by the trial court, accused Nos.1 and 3 preferred appeal before the appellate court. The appellate court confirmed the conviction and sentence of the third accused/revision petitioner. However, the appellate court found the accused No.1 as not guilty. The conviction and sentence as against him were set aside and he was acquitted. Aggrieved by the conviction and sentence passed by the courts below against the accused No.3, this revision has been preferred. 7. Since the counsel for the revision petitioner remained absent continuously, Adv.Majida S. has been appointed as Amicus Curiae to assist this Court. I have heard the learned Amicus Curiae as well as Smt. Maya M.N, the learned Public Prosecutor. I place on record the appreciation for the able assistance rendered by Adv.Majida S., the Amicus Curiae. 8. The learned Amicus Curiae impeached the finding of the courts below on appreciation of evidence and the resultant Crl.R.P.No.2216/2010 -:5:- finding as to the guilt mainly on two grounds. (i) There is non compliance of Section 42 of the NDPS Act. (ii) The prosecution miserably filed to prove the exclusive possession of the revision petitioner over the house from where the contraband substance was seized as well as the conscious possession over the same. 9. The learned Public Prosecutor on the other hand supported the findings and verdict handed down by the courts below and argued that necessary ingredients Section 20(b)(ii)A of the NDPS Act had been established and the prosecution succeeded in proving the case beyond reasonable doubt. 10. The first and foremost point canvassed by the learned Amicus Curiae is the non compliance of Section 42(2) of the NDPS Act. In support of her submission, the learned Amicus Curiae relied on the decision of the Supreme Court in _**Dharamveer Prasad @ Dharmbir Prasad v. State of Bihar & Another**_ [2020 KHC 5672]. PW3 is the detecting officer. He deposed that he got information that the accused Nos. 1 and 3 had transporting 'ganja' at the place of occurrence and he recorded the information in the general diary kept in the police Crl.R.P.No.2216/2010 ## -:6:- station and he prepared a report in compliance of Section 42 of the NDPS Act and the same was forwarded to the immediate superior officer, the Assistant Excise Commissioner, and thereafter he left the place of occurrence. He further deposed that by 7.15 am he reached the place of occurrence where he found the accused Nos. 1 and 2 were travelling in an autorickshaw. He also deposed that he intercepted them and on inspection of the big shopper bag carried by the first accused, he could found 125 grams of 'ganja' therein. He seized, packed and labelled it in accordance with law as per the seizure mahazar. He further deposed that the accused No.1 then confessed him that the balance 'ganja' was kept in his home and accordingly he along with the accused went to the house of accused Nos. 1 and 3 where he could find the accused No.3. On inspection of the house, he seized 425 grams of 'ganja' kept in one of the rooms of the house. The above evidence would clearly show that PW3, the detecting officer went to the place of occurrence and from there to the house of the accused No.3 after getting prior information. Crl.R.P.No.2216/2010 -:7:- 11. Section 42(2) of the NDPS Act makes it obligatory for the officer who receives information relates to the availability of Narcotic drug or psychotropic substance in a building, conveyance or enclose placed, shall record the information and send to the official superior. The Supreme Court in _**Dharamveer Prasad**_ (supra) has held that total non compliance of the requirement of sub Sections (1) and (2) of Section 42 is impermissible. In this case, even though PW3 deposed that he recorded the information in the general diary kept at the police station and thereafter, prepared a report and sent it to his immediate superior officer, apart from the oral testimony of PW3, there is nothing to substantiate the same. The general diary is not produced. The copy of the report is also not produced. Even the superior officer, the Assistant Excise Commissioner, to whom allegedly the report was sent was also not examined. Thus, there is total lack of evidence to prove the compliance of Section 42. Hence I accept the submission of the learned Amicus Curiae that there is total non compliance of Section 42 (2) of the NDPS Act. Crl.R.P.No.2216/2010 -:8:- 12. The next point canvassed by the learned Amicus Curiae is that the prosecution has thoroughly failed to prove the exclusive possession of the house from where the contraband article was seized. It appears that both the courts below presumed that the revision petitioner was having exclusive possession over the house, for the reason that he was present when the seizure was effected from the house bearing No.VII/362. Ext.P2 is the seizure mahazar. It would show that the number of the house from where the seizure was made is VII/362. Ext.P14 is the site plan. It would also show that the number of the house is VII/362. But Ext.P12 ownership certificate would show that the number of the house stand in the name of the revision petitioner is IX/362. Thus, the ward number is totally different. An attempt was made by the prosecution by producing Ext.P13 to show that both the house is one and the same. But, in spite of the production of Ext.P13 and testimony of PW8, the prosecution failed to clarify the description of door number of the house from where the contraband was seized. PW8 in cross examination admitted that as per the Crl.R.P.No.2216/2010 -:9:- register, the revision petitioner is residing in building No. IX/362. That apart, in Ext.P14 site plan drawn by PW9, the scene of occurrence was shown as varandah of a building whereas in Ext.P2 mahazar the contraband was seized from the small room situated at the western end of the building. 13. As stated already, PW3 went to the house of the accused No.3 on the basis of confession statement of the accused No.1 that he had kept the balance 'ganja' at is house. Thus, admittedly, the accused No.1 was also residing in the said house. In Ext.P2 mahazar it is clearly stated that the accused No.3 along with the accused No.1 together with other family members were residing in the house in question. Thus, it is possible that persons other than the revision petitioner had access to the room and the house from where contraband was seized. From the available evidence, it is difficult to accept the case of the prosecution that the house in question was in the exclusive possession of the revision petitioner. The Supreme Court in _**Om Prakash @ Baba v. State of Rajasthan**_ [2009 KHC 5198] has held that in the absence of the evidence that the Crl.R.P.No.2216/2010 -:10:- accused was in exclusive ownership and possession of the house from where the contraband was seized, it cannot be said that the accused possessed the contraband. For the simple reason that the accused was found to be present in the house at the time of seizure, it cannot be presumed that the accused was in exclusive possession of the contraband seized from the house. 14. It is true that the jurisdiction of High Court in revision is severely restricted and it cannot embark reappreciation of evidence. However, the powers under Section 397 read with 401 of Cr.P.C are inherent in nature to correct the judgments and orders of the Courts below which suffer from gross illegality or jurisdictional error. If the findings in the judgment under revision have been arrived at by ignoring or excluding relevant materials or by taking into consideration irrelevant/inadmissible materials or the entire approach of the court in dealing with the evidence is patently illegal, leading to the miscarriage of justice, nothing prevents the High Court from exercising such revisional powers. As stated already, there is total non compliance of mandatory provisions of Section 42 (2) of the NDPS Act. There is absolutely Crl.R.P.No.2216/2010 -:11:- no proof to show revision petitioner's exclusive possession of the house from where the contraband was seized. There is also absolutely no proof to show the conscious possession of the revision petitioner over the contraband seized. For these reasons, I hold that this is a fit case where inherent power vested with this Court under Section 397 read with 401 of Cr.P.C. could be invoked. In the light of the above finding, the conviction and sentence passed by the courts below vide the impugned judgments are set aside. The revision petitioner is found not guilty for the offence charged against him and accordingly, he is acquitted. His bail bond is cancelled. The criminal revision petition is accordingly allowed. Sd/- ## **DR. KAUSER EDAPPAGATH** **JUDGE** **kp True copy** P.A. To Judge